The Supreme Court made the clear and present danger test the de facto guideline for evaluating when speech is covered by the First Amendment at the beginning of the 20th century.
The test was developed by the Court in cases involving seditious libels, that is, critiques of the government, its officials, or its policies. It is frequently confused or contrasted with the bad inclination test. In the late 1960s, the impending lawless action test would take its place.
Holmes suggests using the clear-and-present-danger test. In Schenck v. United States (1919), Justice Oliver Wendell Holmes Jr. famously stated the clear and present danger test as follows: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a matter of proximity and intensity. Many things that could be stated in times of peace when a country is at war are so detrimental to the war effort that they cannot be said as long as men fight, and no court could view them as protected by any constitutional protection.
In Schenck, Justice Holmes stated that “in time of peace,” the pamphleteer and co-defendants “would have been within their constitutional rights,” making a clear distinction between the clear and present danger test and the bad tendency test, which was prevalent in English common law and would be articulated in Gitlow v. New York (1925).
Test to distinguish from negative tendencies According to the “bad tendency test,” the court may logically presume that the communication has a propensity to result in the forbidden outcome when the facts of a case show that the communicator intended a particular outcome.
The court may also punish the communicator for breaking the law based on that inclination. For instance, if a pamphleteer encourages conscripts to oppose military conscription and a statute makes it a crime to break it, judges may justifiably draw the conclusion that the pamphlet tends to encourage breaking the law and convict the pamphleteer.
The bad tendency test does not differentiate between situations, in contrast to the obvious and present danger test. In Gitlow, the Supreme Court stated, “Freedom of expression and the press. . . does not protect writings or ideas that have a tendency to undermine the government, put it in danger, or prevent it from carrying out its governmental tasks (italics added). Only harmless speech is protected by the “bad tendency test,” which makes all seditious libels illegal.
Holmes dissent asserts that there must be an immediate risk. In the end, Justice Holmes concluded that the clear and present danger threshold outlined in Schenck was insufficient to safeguard fundamental constitutional rights. Therefore, he stated that “we should be always vigilant against attempts to limit the expression of thought” in his dissent later that year in Abrams v. United States (1919). . . Unless they seriously risk immediately impairing the law’s legitimate and urgent aim, in which case an immediate check is necessary to safeguard the nation.
As a result, he changed the “clear” to “imminent” danger standard for interference with judicial proceedings.
In Whitney v. California (1927), Justice Louis D. Brandeis further clarified the standard, saying that the “harm perceived” as a result of expression should be “so substantial as to justify the restrictive restriction apprehended by the government.” Justice Holmes agreed.
implementation of the clear and present danger test Until Herndon v. Lowry (1937), when Justice Owen J. Roberts used it in place of the bad tendency test as an appropriate criteria for determining which First Amendment protections apply, the clear and present danger test was not adopted by the majority of the Supreme Court.
The Court used the clear and present danger test to reach 12 decisions between 1940 and 1951.
However, the Court had started to shift its focus when it considered the validity of a law intended to prevent political strikes in the communications sector rather than political expression in American Communications Association v. Douds (1950).
For the majority, Chief Justice Frederick M. Vinson wrote, “It is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity when the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial.”
the introduction of “Gravity of Evil” as a balance test The clear and present danger test was then reformulated by Vinson, who stated: “[N]ot the relative certainty that evil conduct would emerge from speech in the near future, but the degree and seriousness of the substantive evil must be judged by the test established down in the Schenck case.”
Vinson adopted this rephrasing when Dennis was appealed to the Supreme Court in Dennis v. United States. Judge Learned Hand of the Second Circuit Court of Appeals adapted it in United States v. Dennis (1950): “Clear and present danger depends upon whether the mischief of the repression is greater than the gravity of the evil, discounted by its improbability” (1951).
The clear and present danger criteria had become “so utterly muddled,” according to Professor Samuel Krislov, that it just served to provide “apologetic acquiescence of every legislative activity” (p. 88).
Hugo L. Black and William O. Douglas, both justices, concurred.
Black insisted that Justice Abe Fortas eliminate any references to the test from his draft opinion in Brandenburg v. Ohio (1969) in order to have a unanimous Court. Before the judgement in Brandenburg was announced, Fortas declined but did retire from the Court.
The “clear and present danger” requirement is replaced by the “imminent lawless conduct” rule. “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” wrote Justice William J. Brennan Jr. in a revised version of the per curiam opinion (Schwartz 1995: 27).
The clear and present danger requirement has largely been replaced by the imminent unlawful action test. The test for determining whether someone’s right to free expression is protected by the constitution in military courts is still a clear and present threat.